Implied licence for landlord to enter property to perform repairing covenant

A tenant who uses property in a reasonable way for a reasonably contemplated use does not commit waste. A covenant to ‘keep’ property in repair implies that, if need be, it will first be put in repair. A landlord who has covenanted to keep demised premises in repair has an implied licence to enter the property for a reasonable time in order to perform the covenant.

In Saner v Bilton ((1877 – 78) L.R. 7 Ch.D. 815) L owned a newly constructed warehouse for the storage of grain. He granted a lease of it to T. L covenanted to ‘keep the main walls and main timbers of the warehouse in good repair and condition.’ T used the property in a reasonable way (L alleged that this was not so but failed to make out this allegation). Nevertheless, a beam supporting one of the floors broke. Two of the external walls bulged and very extensive repair works were needed.

Fry J. held that T had not committed waste. He had not used the property unreasonably. A tenant who uses property in a reasonable way for a reasonably contemplated use does not commit waste. The fact that the cause of the problems arose from the original construction of the building did not take the work outside the scope of the landlord’s repairing covenant. A covenant to ‘keep’ property in repair implies that, if need be, it will first be put in repair. Put another way, a covenant to ‘keep’ in repair does not water down the scope of the repairing covenant. T was not entitled to damages in respect of the time he was kept out of possession by the landlord’s presence for the purpose of the repair works. A landlord who has covenanted to keep demised premises in repair has an implied licence to enter the property for a reasonable time in order to perform the covenant. This implied licence is not inconsistent with the covenant for quiet enjoyment:

“I think the covenant for quiet enjoyment must be read as subject to the license which I have held to be implied in the covenant to repair.’ (per Fry J at 824).

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